Has Art 263(4) of the Lisbon Treaty achieved Advocate General Jacobs’ ideal of “the law itself [being] clear, coherent and readily understandable.” (See UPA Opinion at )?
No. As shall be seen in this post, to continue the maritme metaphor in this series, standing is still a rough and unpredictable sea to navigate. Many a case have been scuppered on the reefs of inadmissibility. Quite why this is the case requires us to pick apart the three notions of “implementing measures”, “direct concern” and “regulatory act”.
To some extent, this post will be rather technical. It is aimed for those who are interested in an overview of the operational problems and internal inconsistencies that lie in the third head. Given the limits of space, it is not possible to discuss at great length all of the finer nuances. Those who are interested may find my article in the European Journal of Legal Studies here which puts the flesh on the bones of this necessarily skeletal overview.
Part I) Implementing Measures
- The formalistic interpretation of implementing measures
It is very rare that an act will not entail implementing measures, because pretty much any action taken at the national level will constitute an implementing measure. A good example of this is Case C–456/13 P T and L. Here Tate and Lyles and another company (think “Golden Syrup”) and another company involved in sugar products sought to challenge Regulations that set down exceptional import tariffs on sugar. Under this scheme, national authorities received applications for import licenses, ensured that the conditions of admissibility in the Regulations were satisfied, and notified the Commission of any quantities allowed to be imported.
No discretion was left to the national authorities. Their involvement was strictly supervisory because everything they had to do was laid down in the Regulations. They did not themselves decide whether to grant a given import license, they simply checked whether the Regulations allowed for a license to be granted. In the words of T and L’s lawyers, they were simply “mailboxes” for the scheme that was the exclusive design of the commission.
But the CJEU held that they were implementing measures nonetheless. The critical paragraphs read as follows, with references to individual Regulations removed for readability:
40. However, [the EU Regulations that make up the tariff scheme] produce their legal effects vis-à-vis the appellants only through the intermediary of acts taken by the national authorities following the submission of applications for certificates on the basis of [those Regulations]. The decisions of the national authorities granting such certificates, which apply the coefficients fixed by [those Regulations] to the operators concerned, and the decisions refusing such certificates in full or in part therefore constitute implementing measures within the meaning of the final limb of the fourth paragraph of Article 263 TFEU.
41. That conclusion is not called into question by the allegedly mechanical nature of the measures taken at national level.
42. As the General Court rightly held in paragraph 53 of the judgment under appeal, that question is irrelevant in ascertaining whether those regulations entail implementing measures within the meaning of the final limb of the fourth paragraph of Article 263 TFEU.
In other words, the legal effects of the scheme arose only through acts taken by national authorities after the undertakings had submitted applications for import licenses. These acts taken by the national authorities were implementing measures. Crucially, it was irrelevant that these implementing measures were of a ‘mechanical’ nature, the mere fact that such measures existed precluded reliance on the third head.
Therefore it is necessary to show that the contested measure in and of itself gives rise to the legal effects that are complained of (see Case C-552/14 P Canon Europa, at [48); and Case T-312/14 Federcoopesca at ). This is a formalistic interpretation of the notion of implementing measures.
2. The consequences of the formalistic interpretation
All in all, this is a very formalistic interpretation of the criterion of “not entailing implementing measures”. This interpretation gives rise to three pernicious consequences.
First, it is often easier for a party to show that they are individually concerned than that the measure they are contesting does not entail implementing measures. See Case C-132/12 P, Stichting Woonpunt (discussed later); Case T-276/13, Growth Energy (Appeal outstanding); Case T-17/12 Hagenmeyer; Case T-57/11,Castelnou; Case T-614/13, Romonta (Appeal outstanding); Case T-287/11, Heitkamp (Appeal outsanding) (you get the point). This is concerning, given that the test of individual concern is notoriously difficult to satisfy. It also means that the post-Lisbon third head can even be even more difficult than the pre-Lisbon position.
Second, only a limited kinds of acts can be challenged; i) simple prohibitions (like Mr Xenakis, and the ban that prevented him from fishing tuna) and ii) the inclusion on a list, where that inclusion gives rise to legal consequences. The problem is that i) there are few acts that are simple enough to fall in the first category – more complex ones will require some form of co-operation at national level, like T and L, and therefore require implementing measures and ii) it is often a matter of chance as to whether the inclusion on a list gives rise to the legal effects complained of – compare Case T-93/10, Bilbaina with Case T–310/15 European Copper (Appeals outstanding).
Third, whole areas of EU law are sealed off from challenge on the third head. Challenges to State aid Decisions, for example, will inevitably require implementing measures in the form administrative notices issued to reclaim the amount of aid unlawfully granted (Case T‑221/10, Iberdrola, Case T-118/13, Whirlpool, Case T-
174/11,Modelo Continente Hipermercados). Indeed, even the mere declaration that the aid was unlawful, without the collecting of the aid, entails implementing measures (Case C-274/12 P, Telefonica). This was the case in Telefónica where the aid did not have to be reclaimed by the Spanish state because Telefónica had a legitimate expectation that the aid was lawfully granted. As can be seen, the application of the third head is entirely precluded in this area. (But see Case T-220/13 Scuola Elementare Maria Montessori,  to  (in French and Italian)). Other areas can also be found, like challenges to customs duties and anti-dumping duties.
3. Toward a more substantive conception of implementing measures
But “not entailing implementing measures” does not have to be given such a formalistic interpretation, other are possible, and even more desirable. An argument in favour of a more substantive reading, i.e. one that considers the substance of the implementing measures, and not the mere fact that they exist, could go as follows. First, textually, recall that the contested act must entail implementing measures. The mere fact they exist seems to be a lower threshold at odds with some linguistic versions of the TFEU. Second, conceptually, as suggested in the Opinion for T and L, the Courts could rather consider whether the contested norm is “fully and autonomously operational” (emphasis in original) in light of its purpose, content and effects on the applicant’s legal situation, rather than simply whether implementing measures exist.
Based on these points, one might say that the administration of the scheme in T and L at national level did not mean the challenged scheme entailed implementing measures. That scheme was self-contained, its detail was laid down comprehensively in the challenged measures. It was, in this light, operational in and of itself even if some minor acts had to be carried out by the Member states.
Part II) Direct Concern
- Direct Concern after the Lisbon Treaty
Direct concern means what it did prior to the Lisbon reforms. This seems correct as a matter of interpretation. The framers retained the notion of ‘direct concern’, despite other possible wordings.
2. The separation of the second element of direct concern and the criterion of not entailing implementing measures.
In itself, this is not objectionable. The problem is that the Courts have maintained that there is a hermetic separation between the second criterion of direct concern and the notion of not entailing implementing measures. This creates further hurdles in founding standing on the third head, because it totally ignores the fact that there might be some overlap between the two.
Recall that the second criterion of direct concern requires that the contested act produce effects without the need for intermediate rules. Yet this seems rather similar to the requirement that the contested act not entail implementing measures. This is stoutly resisted by the Courts, see in Case C-84/14 P Forgital at  to  (in French, but see translation in my article).
3. A questionable separation.
Practically, this does not make a whole lot of sense. Take Case C-132/13 Stichting Woonpunt. In short, the Commission had doubts that an aid scheme granted to non-profit property organisations was lawful. The Netherlands promised to make changes to the law (through a ministerial decree and a new Housing Law). These changes, for reasons not presently relevant, became binding on the Dutch state when accepted by the Commission; they had to bring that decree and Law into being. The property organisations then sought to challenge this new scheme.
They did not have standing on the basis of the third head. Why? Because the changes in question were to be brought into being through a decree and a law. These were implementing measures.
They did have standing on the basis of the second head. Why? Because once the Commission accepted the changes, the Dutch state had to bring them into being. As a result, concluded the Court, the new scheme came into effect ‘purely automatic[ally]’ and ‘without the application of other intermediate rules’.
It is difficult to accept the two. How can one conclude that the new scheme entailed implementing measures, but, at the same time, came into effect purely automatically and without the application of other intermediate rules? As I explain in my article, the analysis is couched in substantively the same terms.
4. An overlap?
The rigid distinction between the notions of direct concern and implementing measures is more difficult to accept than it initially appears. Indeed, it is possible to consider the two notions as identical, as was done in Advocate General Wathelet’s Opinion for the Woonpunt case. He considered that not entailing implementing measures was not a separate condition but an explanation of direct concern. The very notion of absence state discretion, therefore, satisfies both the second criteria of direct concern and meet the requirement of not entailing implementing measures.
Part III) Regulatory Act
There are two elements to the notion of a regulatory act: the measure must be non-legislative, and it must be of general application. Space precludes discussing the element of “general application”, and this will only consider the non-legislative criterion.
The CJEU in Case C-583/11 P Inuit held that only non-legislative acts can be regulatory. In other words, legislative acts are excluded from the purview of the third head. I do not think that this is the correct interpretation, or that it is a desirable one.
First, it is questionable whether this is the correct interpretation of the term regulatory. The arguments are fairly technical, but for the present purposes, I point the reader to the fact that the Treaty uses the term “non-legislative act” (Art 290(1) and Art 297(2)) when it refers to an act that is not of a legislative nature. So why would it use the term regulatory in Art 263(4) TFEU if it had meant “non legislative act”? Why not just say “non-legislative act that does not entail implementing measures”?
Second, it is difficult to see why the distinction is relevant. Some might say that the legislative procedure confers an element of legitimacy on the resulting norms; they are impressed with a democratic imprimatur which should insulate them from challenge. But does the legislative process of the EU really confer this quality on legislative norms? And if it does, why is it just as easy to challenge a legislative norm indirectly through the Art 267 procedure? In any case, a given policy change could easily be enacted on a legislative or a non-legislative basis, so the distinction appears somewhat formalistic. Admissibility hinges on a purely formal criterion of whether the impugned act is legislative or not.
Third, it means that all challenges to legislative acts are stuck in the pre-Lisbon quagmire of having to show individual concern. In Case T–640/14 Beul (Appeal outstanding) and Case T–560/14 ABZ the parties had to shoehorn themselves into one of the few cases where a general provision was found to affect a party individually. This is Case C-309/89 Codorniú, where the Spanish producer of Gran Crémant challenged a measure that would have restrictied the term “crémant” to French and Luxembourgish sparkling wines. Why? Because they had a trademark over Gran Crémant, and thus has an individualized proprietary entitlement that distinguished them from all the other wannabe producers of crémant. The cases of Beul and ABZ are on appeal to the CJEU, after the General Court rejected them as inadmissible for lack of standing. Maybe the CJEU will take a different view. But it is, to put it mildly, uncomfortable that the willingness of the EU Courts to afford the parties a hearing and pass judgment on the legality of the contested act depends on whether they can squeeze themselves within the Codorniú precedent.
Finally, it means that the dilemma still has not been resolved. It exists still where a legislative act is self-executing (i.e. where there are no implementing measures that can be challenged in national courts and then referred to the CJEU). Again, this is not a hypothetical. The high water mark of the injustice of standing rules, Jégo Quéré (See my first post on this matter), would not be decided differently today. Why? Because it concerned a legislative act, and they would still today fare no better than they would have under the pre-Lisbon scheme.
Part IV) Conclusion
To conclude, it is difficult to make sense of the third head. The notion of “not entailing implementing measures” is read as narrowly as possible, so it is very difficult to rely on the third head. The refusal to see the overlap between the second element of the criterion of direct concern and the “not entailing implementing measures” means that the third head is of limited practical use. Perhaps worst of all,, the restriction of “regulatory acts” to non-legislative acts does to seem to be well found in the Treaties, means that the Dilemma still exists in respect of legislative acts, and adds yet another element of lottery to the standing rules in EU law.
Yet, as has been demonstrated, this position is not the only viable one. It is entirely possible, for the reasons explained above, to conceive of textually well-founded interpretations of the third head that would make it much easier to rely on. Even though the text of art 263(4) has changed in the Lisbon Treaty, it seems that the EU Court’s restrictive attitude to standing has not.
Michael is currently fourth référendaire at the Court of Justice of the European Union (CJEU), and this and the following two posts on the subject are summaries of what he has set out in an article in the European Journal of Legal Studies The views he expresses are personal only, and the article was written before he took up his current responsibilities at the CJEU.
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